Uyaemenam Nwora & Ors V. Nweke Nwabueze & Ors (2016)

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EMMANUEL AKOMAYE AGIM, J.C.A.

On 12-11-1999, the Anambra State High Court rendered judgment in consolidated suits Nos.AA/53/75 and AA/11/77 granting declaration of title to the suit land in favour of the 1st and 2nd sets of respondents herein.

On 18-11-1999, the appellants filed a notice of appeal against the said judgment. Thereafter, the appellants did nothing in pursuance of the preparatory processes for the take off of the prosecution of the appeal until 31st October 2003, when they deposited the sum of N10,000.00 with the Registrar of the trial Court for the preparation and compilation of the record for the appeal.

?On 10-2-2005 this Court, upon the application of the appellants ordered the Chief Registrar or Registry of the trial High Court to compile and transmit the record of proceedings in the consolidated suits Nos. AA/53/75 and AA/11/77 to this Court within 30 days. It is noteworthy that the respondents did not oppose this application. The Chief Registrar wrote a letter dated 14-4-2005 to the Deputy Chief Registrar of this Court that several efforts made by him to trace the said record of

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proceedings did not yield the desired results. Following this letter, the appellants on 11-10-2005 applied by motion on notice to this Court for an order directing the Chief Judge of the trial High Court to re-assign to another Judge for trial de novo the consolidated suits Nos. AA/53/75 and AA/11/77 already finally and conclusively tried and determined since 12-11-1999. This Court refused the application holding that ?the condition precedent to taking an appeal in this Court are not complete being that there is no record of appeal transmitted to this Court. A notice of appeal by itself does not constitute an appeal. An appeal is by rehearing. There is nothing in this Court to hear.? This Court struck out the motion under Order 6 Rule 6 of the 2007 Rules of this Court. Dissatisfied with this refusal and striking out of their application, the appellants appealed against the said decision to the Supreme Court in Appeal No SC/115/2009.

?In respect of the notice of appeal filed on 18-11-1999 against the final judgment of 12-11-1999 in the consolidated suits, the Registrar of the trial High Court signed a certificate of non compliance with the

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conditions of appeal imposed. On the 3-3-2009, this Court struck out the appellant?s appeal No. CA/E/30/2009 for non compliance with the conditions for appeal. Dissatisfied with this decision, the appellant filed a notice of appeal commencing appeal No. SC/418/2010 at the Supreme Court.

On 9-12-2011, the Supreme Court struck out appeal No. SC/115/2009 following the adoption by the parties of their respective briefs.

On 17-5-2013, following the adoption of briefs by both sides, the Supreme Court in a unanimous decision allowed the appeal No SC/418/2010, set aside the certificate of non compliance issued by the Registrar of the High Court, nullified the judgment/ruling of this Court of 3-3-2009 striking out appeal No CA/E/30/2009 for non compliance with the conditions for appeal, declared that Appeal No CA/E/30/2009 was still valid and pending in Court and that the appeal be heard.

The 2nd set of respondents by a motion on notice filed on 13-6-2013 applied for-
1. ?AN ORDER of this Honourable Court dismissing the appellants? Appeal No. CA/E/30/2009 for Non-Compliance with the Rules of this Honourable Court
2. AN ORDER of

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this Honourable Court vacating the Order of stay of execution made by the trial High Court against its judgment delivered on the 12th day of November 1999 granting declaration of title of the disputed land to the 1st and 2nd set of respondents.
3. AND FOR SUCH ORDER(S) as this Honourable Court may deem fit to make in the circumstance.?